Sunday, September 29, 2013
The Fourth Circuit ruled last week in Educational Media Company at Virginia Tech v. Insley that a Virginia state ban on alcohol advertising in college newspapers violated the First Amendment as applied to student papers at Virginia Tech and U.Va.
The ruling means that the law can't ban these papers from running alcohol ads. But it also means that the law stay on the books and ineffect as to other student newspapers, unless and until they successfully challenge it, too.
Virginia law says,
Advertisements of alcoholic beverages are not allowed in college student publications unless in reference to a dining establishment . . . .
Student newspapers at Virginia Tech and U.Va. sued, arguing that the ban violated free speech. In a first round of litigation, the Fourth Circuit ruled that the ban didn't violate the First Amendment on its face. But the court remanded the case to determine whether the ban violated the First Amendment as applied to these two papers.
The court ruled last week that it did. In particular, the court held that the ban isn't appropriately tailored to the state's aim--that is, that the ban isn't more extensive than necessary to serve the government's interest--and thus violated the fourth prong of the Central Hudson test for regulations of commercial speech.
The problem was that the ban was designed to reduce under-age drinking, but the majority of the newspapers' readers were over 21. "Thus, the College newspapers have a protected interest in printing non-misleading alcohol advertisements, just as a majority of the College Newspapers' readers have a protected interest in receiving that information." Op. at 21.
As to the state's interest in preventing alcohol abuse by those over 21, the court said that the ban did exact what the Supreme Court prohibited in Sorrell v. IMS Health, Inc.: it sought to "keep people in the dark for what the government perceives to be their own good." Op. at 22 (quoting Sorrell).